The Problem of Birth Tourism
by
NBC News/YouTube screenshot

Immigration is many issues rolled up into one. The president doesn’t seem to like people coming to America for most any reason, even though immigrants have helped America grow since its founding. Indeed, with the fertility rate below replacement levels, immigration is why the U.S. population is not today shrinking like in Japan, Russia, and some European nations. Moreover, productive immigrants help expand the overall economic pie.

But more than money is at stake, and immigration has become inextricably tied to citizenship. The latter is not something to be offered lightly. It is best when someone seeking to become an American has or develops a strong connection with the country, sharing essential cultural values and political principles. That is clearly not the case with “birth tourism,” when a pregnant woman arrives in the U.S. to gain citizenship for her child. (Free quality medical care often is seen as one among many ancillary benefits.) That results from the 14th Amendment’s grant of “birthright” citizenship.

The amendment was adopted after the Civil War. Section one states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It was intended to legalize the freedmen, ensuring that no Southern state ever could deny them citizenship rights.

Few thought much about the provision’s broader application. At that time the U.S. placed few restrictions on immigration. So no subterfuge was necessary to gain American citizenship. Only later was birth in the U.S. seen as a way to avoid limits imposed on those hoping to enter permanently.

Since then, the 14th Amendment has been interpreted to apply to anyone born in America, except for diplomats, who enjoy legal immunity and thus are not “subject to the jurisdiction” of the United States. The provision certainly covers tourists, students, businesspeople, and others admitted legally. Nevertheless, those here illegally could be seen as outside of the government’s jurisdiction as intended by the amendment. Most legal experts lean toward the more expansive interpretation, but the Supreme Court has not made a definitive determination.

America is not alone in offering birthright citizenship, but the practice is rare. Thirty other nations recognize citizenship by birth, but Canada is the only other industrialized democracy to do so. A number of countries that once recognized birthright citizenship have added important conditions in recent years.

For instance, Australia now requires that at least one parent be Australian. New Zealand mandates that at least one parent be a citizen or permanent resident. The UK looks to parents being “settled” in the country and children having resided there for a period of time. Ireland, the last European Union member with birthright citizenship, adopted legislation in 2004 abandoning the practice. Now at least one parent must be a citizen or entitled to citizenship. In short, all four states moved to require that someone receiving citizenship through birth have a long-term connection with the respective country, as opposed to simply being the offspring of someone who “dropped in,” one might say, only for the big event.

The largest impact of birthright citizenship on America is on the 300,000 to 400,000 babies born annually to people in America illegally. Automatically granting these children citizenship obviously allows them to leap over the much more complicated, lengthy, and uncertain formal process for gaining citizenship. Automatic citizenship also greatly complicates resolving the status of their parents. Whatever legislation eventually emerges regarding today’s illegal population, estimated at around 11 million (though some estimates run far higher), there are strong prudential and political reasons not to make them citizens en masse. But creating families in which children already are citizens creates greater pressure to make their parents citizens en masse.

Less significant in number but outrageous on almost any criteria is so-called birth tourism, which the Center for Immigration Studies estimates results in around 33,000 cases annually. No doubt, some pregnant tourists come and give birth early and unexpectedly. Others come for valid medical reasons seeking specialized treatment. But the practice of going to the U.S. for the purpose of having a child is well-established and common in Brazil, China, Mexico, Nigeria, Russia, South Korea, Taiwan, and Turkey, among others. Sometimes minor children return to be educated at U.S. taxpayer expense.

Even supporters of a more liberal immigration system should oppose this kind of blatant manipulation of rules created for an entirely different purpose. True, the number is not huge, and it is unclear how many of those granted citizenship return to America as adults. Nevertheless, their mothers abused the system, essentially (and sometimes formally) committing fraud. They prevented Americans from ensuring that conditions for citizenship were met. These visitors also effectively stole from generous Americans, using medical, educational, and other services intended for others.

More fundamentally, birth tourists abused their access to the U.S., racing past those who followed the rules, lining up and waiting in hopes of coming to America. There is much to criticize in the present system, but birth tourism undermines efforts to create a more rational and generous system. (The administration also warned of national security risks, but that is implausible at best, an attempt to justify preventing public comment on its proposed new rule. Here the administration is effectively cheating to avoid playing by the rules.)

Combatting birth tourism requires a focus on pregnant women — an uncomfortable but essential step. The administration has published a new regulation on B nonimmigrant visas for “pleasure” travel. (Left untouched would be those in America on student or work visas, who account for about 39,000 births a year.) The new provision bars issuance of B visas for birth tourism and states that “a consular officer shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose.” Consular officials will be expected to judge the legitimacy of the purpose for visiting America and possession of adequate financial resources to cover potential medical needs. Making such judgments won’t be easy — consular officials often resolve such dilemmas by making overbroad denials — but there is no obvious alternative.

Extra effort should be made to identify parties in America and abroad who promote the practice. Last year the administration indicted California firms deeply involved in birth tourism, primarily for Chinese visitors, some of whom paid up to $100,000 to get to America. (The foreign visitors face no punishment since they violated no law.) In issuing its new rules, the State Department cited an industry that “has evolved to assist pregnant women from other countries” in gaining U.S. citizenship for their children. Indeed, “companies tout a broad range of benefits for the U.S. citizen child and eventually its family, including, but not limited to, access to free education, less pollution, retirement benefits, the ability to compete for jobs in the U.S. government, and the ability for the whole family to eventually immigrate to the United States.”

Targeting birth tourism does not address the larger question of birthright citizenship. But the administration should offer alternative interpretations and remedies regarding the requirements for becoming a citizen of the United States. One reason would be to spark a serious debate on who should be invited into the American political community. Another would be to move forward efforts to craft improvements to the current system.

Compromise will be necessary to pass any immigration legislation, irrespective of who wins in November. The end of unconditional birthright citizenship should be in the mix. After all, it is easier to argue for more expansive economic visas if citizenship remains separate and more restrictive. Not everyone who wishes should be made a citizen, a “decider” empowered to change the basic rules governing society. One could, for instance, pull those in the U.S. illegally out of the shadows and allow them to work, while requiring them to start afresh and go through something akin to the normal application process if they wish to become citizens. No jumping the queue or gaining citizenship en masse.

The president’s rhetoric often has impeded serious discussion of difficult immigration issues. But he is right to address the problem of “birth tourism.” Seen as a minor abuse by some, it has an outsize impact. It is an unfair practice that complicates immigration policy today and hinders reaching a realistic immigration compromise in the future.

Doug Bandow is a Senior Fellow at the Cato Institute. He is a former Special Assistant to President Ronald Reagan and author of several books, including and Foreign Follies: America’s New Global Empire.

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